Legal Matters By MICHAEL BAGRAIM, Consultant at Bagraims Attorneys and leading member of the Democratic Alliance
The building collapse in the Southern Cape has focused our minds somewhat on what could go wrong in the building industry. I am not an expert on health and safety, nor am I a building specialist. However, in my practice of labour law, I regularly deal with liabilities arising out of accidents at work.
Various pieces of labour legislation, including the Basic Conditions of Employment Act, the Labour Relations Act, and all the Health and Safety Regulations deal with the duty of care that the employer owes to the employee. This duty of care is far reaching and certainly extends beyond the employer. Although we have no actual reports on this particular disaster, we have precedent from other building operations and other — unfortunately numerous — accidents at the workplace.
There are literally dozens of regulations from various pieces of legislation dealing with health and safety at the workplace and, in particular, there are more specialised regulations dealing with the building industry.
Liability falls on all the players — starting from the employer, stretching to the professionals and finally, after a few other steps, with the municipality and indeed the government. Codes of Good Practice for architects, engineers and anyone who will be deemed to fall under the auspices of the Building Industry Bargaining Council need to be very strictly followed. It is trite to say that every single employer owes a duty of care to all their employees, and this duty of care includes the right to health and safety.
In order to fulfil the injunction an employer would take out insurance to comprehensively cover any visitor or non-worker. A more specialised insurance through the Department of Employment and Labour will be applicable to everyone registered as an employee. This registration would include a payment to the Compensation Fund, which is an entity under the auspices of the Department of Employment and Labour.
Registration through the Compensation Fund grants indemnity to an employer for injuries occurred at work. In certain circumstances, if the employer is grossly negligent, other action could take place, including criminal action. It goes without saying that should the employer employ individuals who are not covered by the Compensation Fund, the employer would be facing the very harsh liability of claims for injury or death. The employee or the employee’s next-of-kin would still approach the Compensation Fund and, in turn, the Compensation Fund would pursue the employer.
The disaster could lead to criminal action and/or damages claims. Should the members of the professional team be found to be negligent that would lead to other claims which could also amount to criminal consequences.
At this stage in this particular case, we are not sure about the facts and we are not sure if all the employees were appropriately registered and covered by the various insurances in place. One would expect the professionals to have their own indemnity insurance which probably would not cover them for grossly negligent work.
One of the real problems that we are facing in South Africa today is the nightmare of a grossly incompetent, under-resourced and, quite frankly, negligent Department of Employment and Labour. I have been engaging with the Ministers of Employment and Labour (Minister Nxesi and, before him, Minister Oliphant) with regard to the lack of an inspectorate and all the problems arising therefrom. We have an enormous problem in that the inspectorate is completely under-resourced. In South Africa, we employ only about 10% of the numbers of inspectors that we actually need — and this 10% are not given the tools of their trade and equipment. Invariably, they don’t have motor vehicles and, sadly, they are reactive as opposed to being proactive. Very seldom do you see an inspector if no complaint has been raised. The Department of Employment and Labour, through all its entities, has let down the workforce of South Africa.
The issue with regard to many of the deceased has become a much vexed problem in South Africa. Reports are telling us that many of the employees in the George disaster are foreign nationals. We are not sure at this stage as to whether these foreign nationals were registered and documented. We are also not sure whether they have work permits, and whether they were at least registered with the Department of Employment and Labour.
If these individuals were not registered and did not have work permits, the employer has a criminal liability. The true value of the Compensation Fund – and hence the need to employ locals – is that the Compensation Fund gives absolute indemnity to the employer in a situation of this nature. The above being said, I attribute a lot of blame to the Department of Employment and Labour, who have not been able to show that they had inspectors there through the various stages of the building. It must be known that the building was in its final stage and should have been inspected at least a dozen times before that.
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